State v. Acuff

Opinion of the C<jurt delivered by Tompkins Judge.

Acuff was indicted in the Circuit Court, and on his motion the indictment was quashed, and, to reverse the judgment of the Circuit Court quashing the indictment, the State prosecutes this writ of error. The j udgment charges that Hannah M. Davis was confided to the care and protection of one Grenville P. A cuff by John Davis the father and natural guardian of the said Hannah, she the said Hannah being then &c. a white female under the age of eighteen years &c. The indictment is framed on the 9th section of the Sth article of the act concerning crimes and their punishments, found on page 207 of the digest of 1835. The words of the ninth section arc as follow viz: “If any guardian of any white female under the age of eighteen years, “or of any other person to whose care or protection any “such female shall have been confided, shall defile her by “carnally knowing her, he shall, in cases in this act not other“wise provided for, be punished by imprisonment in the “penitentiary not less than two yeai’s, or be fined not ex-deeding five hundred dollars, or by both such fine and im“prisonment.” On the part of the State, the Circuit attorney contends that the word “of,” following the word “or” and preceding the words “any other person,” in this ninth *56 ?? rion ought, to be rejected as superfluous, being, as lie cont , either a typographical or a mere clerical error, vhilc o.i -Re -.ide of the defendant it is contended that the word *j !" ought not to be rejected and that undo1 >bi • lion ti-, 1 i'(. o'vi a .<;irirdiau appointed agref.-.d. ; to taw can be indicted. The original rolls, from which this act. was print>.'.:„ -eíM., : v.e mu.* resort to the usual - - -,on-st ■ ring Ini ■■i.ago, in order to ascertain the hito.; ■ : the la - making -owor. According to the ecu ■ • ;on-tcodod for by the run rise) of the defendant, hi •= • ■ "Cuit ( ut, the ninth soilion should read thus. " : : oar-dian of any while female under the age of eighteen years Qi any guardian of any oilier person to who o casi • protection any ..'itch /emule shall have been confided, .-hail Ac.” Rio4 certainly this section was framed for the protecTm of white females under the ages of eighteen years, fo. the words “any cud) female,” refer as plainly to the proceeding words “females under the age of eighteen years” a, language can male them refer, and then the section would be unintelligble. The roialive “whose,” according to bis own construction, relates to the preceding word guardian. To say then that if the guardian of any other person to whose care any such female, meaning a white female under the age of eighteen years of age, shall have been confided, shall defile her by carnally knowing her, he shall &c. be punished &c. would be to say what no one could understand the meaning of; but if, as the Circuit attorney con-ten(^s»we reject the word “of” it will be perfectly intelligible aQc^ ^e guardian or any other person, to whose care cr protection any white female under eighteen years of age may have been confided, will be subject to the penalties of this sect*on if he offend against it. Surely there can be no reasou why not as criminal and as infamous in several other persons to violate such a trust, as it is for a guardian do it. The judgment of the Circuit Court is, in my opin. ion, clearly erroneous and such also being the opinion of all this court, the judgment of that Court is reversed, and *57 the cause will be remanded to be proceeded in conformably ...... to this opinion.

indictment under the 9th art.’ of the "ns crimes'1" find their U^c^iss1?)3 whiu female «If eighteen86 .years, confi-care ívfÜ°iieid that the statute. i-icludcs not only guardians but all other persons- to whose care br protection i.ny such female shall have been confided, and that the word “of,” following the word “or,” and preceding the wori's “any other person,” mast be rejected in order to reader the section intelligible.